Emails considered “abandoned” if older than 180 days


The Electronic Communications Privacy Act – Part 1

Email Privacy

It turns out that those 30 day email retention policies I have been putting down for years may… actually be the best policy.

This may not be a surprise to some of you but the government can access your emails without a warrant by simply providing a statement (or subpoena) that the emails in question are relevant to an on-going federal case – criminal or civil.

This disturbing fact is legally justified through the misnamed Electronic Communications Privacy Act of 1986 otherwise known as 18 U.S.C. § 2510-22.

There are some stipulations to the government gaining access to your email;

    • The email must be stored on a server, or remote storage (not an individual’s computer).This obviously targets Gmail, Outlook.com, Yahoo mail and others but what about corporate email administered by third parties, what about Outlook Web Access, remote workers that VPN into their corporate email servers, PSTs saved on cloud storage…
    • The emails must have already been opened. Does Outlook auto-preview affect the state of “being read”?
    • The emails must be over 180 days old if unopened

The ECPA (remember it was written in 1986) starts with the premise that any email (electronic communication) stored on a server longer than 180 days had to be junk email and abandoned.  In addition, the assumption is that if you opened an email and left it on a “third-party” server for storage you were giving that “third-party” access to your mail and giving up any privacy interest you had which in reality is happening with several well-known email cloud providers (terms and conditions).  In 1986 the expectation was that you would download your emails to your local computer and then either delete it or print out a hard copy for record keeping.  So the rules put in place in 1986 made sense – unopened email less than 180 days old was still in transit and could be secured by the authorities only with a warrant (see below); opened email or mail stored for longer than 180 days was considered non-private or abandoned so the government could access it with a subpoena (an administrated request) – in effect, simply by asking for it.

Warrant versus Subpoena: (from Surveillance Self-Defense Web Site)

To get a warrant, investigators must go to a neutral and detached magistrate and swear to facts demonstrating that they have probable cause to conduct the search or seizure. There is probable cause to search when a truthful affidavit establishes that evidence of a crime will be probably be found in the particular place to be searched. Police suspicions or hunches aren’t enough — probable cause must be based on actual facts that would lead a reasonable person to believe that the police will find evidence of a crime.

In addition to satisfying the Fourth Amendment’s probable cause requirement, search warrants must satisfy the particularity requirement. This means that in order to get a search warrant, the police have to give the judge details about where they are going to search and what kind of evidence they are searching for. If the judge issues the search warrant, it will only authorize the police to search those particular places for those particular things.

Subpoenas are issued under a much lower standard than the probable cause standard used for search warrants. A subpoena can be used so long as there is any reasonable possibility that the materials or testimony sought will produce information relevant to the general subject of the investigation.

Subpoenas can be issued in civil or criminal cases and on behalf of government prosecutors or private litigants; often, subpoenas are merely signed by a government employee, a court clerk, or even a private attorney. In contrast, only the government can get a search warrant.

With all of the news stories about Edward Snowden and the NSA over the last year, this revelation brings up many questions for those of us in the eDiscovery, email archiving and cloud storage businesses.

In future blogs I will discuss these questions and others such as how does this effect “abandoned” email archives.

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Discovering the public cloud in Outlook


In my blog “The coming collision of “free to the public cloud storage and eDiscovery” posted on June 23, I talked about these new free cloud storage options and how they could become a problem in the litigation/eDiscovery process. While researching that blog, I found an interesting capability with Microsoft Outlook and the various cloud storage offerings.

It is called a email folder URL redirect. Microsoft Outlook includes the capability to associate an email folder with a Web page. You can set up this association so that when you select the email folder, the Web page appears or the contents of the folder appear.

This capability can be useful when you want to include internal instructions or news about the organization. Another example would be a redirected folder pushed out to all in the organization announcing a litigation hold and answering questions about the hold, expectations, target content etc.  Although this capability provides the opportunity to create powerful public folder applications, non-approved scripts can be included on the Web page that access the Outlook object model, which exposes users to security risks so users should not be adding redirected email folders without IT’s approval.

So how does this capability, email folder URL redirection, relate to cloud storage? All four of the “free to the public cloud storage” offerings mentioned in the blog include a web page where files can be uploaded, viewed and downloaded. This means, for example, the Amazon Cloud Drive service could be a redirection target for an Outlook email folder.

Use the following steps to create and associate an e-mail folder with a Web view:

  • If you don’t already have a folder list showing in your Outlook front end, click on the View menu, then click Folder List.
  • Create a new folder in the folder list called Amazon Cloud by right clicking on the top most folders where you want to create the Cloud folder under. Then type in the new folder name Amazon Cloud

Figure 1: Create a new email folder called “Amazon Cloud”

  • In the Folder List, right-click the folder that you want to associate with a Web page, and then click Properties on the shortcut menu.
  • In the Property dialog box, click the Home Page tab.
  • In the Address box, type the URL for the Amazon Cloud drive web page.
  • Click to select the Show home page by default for this folder check box if you want the Web view active.

Figure 2: Input the URL address of the Amazon Cloud drive webpage

  • Click OK.

Now, by clicking on the new email folder, you will see the Amazon Cloud drive sigh in webpage.

Figure 3: Access and sign in to your Amazon Cloud drive webpage

Figure 4: You now have full access to your cloud storage from within Outlook

Some things you can now do include being able to open files from within your Amazon Cloud Drive. Once opened, data can be copied and pasted to a new email you might be creating.

Some things you can’t do directly include saving an email attachment directly to your cloud drive, dragging a file in your cloud to an email. For both these capabilities, an interim step is required. Namely coping files to your desktop first.

If that’s the case, is this capability useful? That depends… If you utilize a “free to the public cloud storage” service then you may want a more direct capability to view content in your cloud from within Outlook. This is somewhat of a stretch but you never know.

The main reason I’ve highlighted this capability is to illustrate how difficult the eDiscovery collection and litigation hold processes are getting when custodians have all these different options for storing (hiding) potentially responsive ESI.